623 F.2d 992 (5th Cir. 1980), 79-2020, Mayola v. State of Ala.

Docket Nº:79-2020.
Citation:623 F.2d 992
Party Name:Michael A. MAYOLA, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
Case Date:August 11, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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623 F.2d 992 (5th Cir. 1980)

Michael A. MAYOLA, Petitioner-Appellant,


STATE OF ALABAMA, Respondent-Appellee.

No. 79-2020.

United States Court of Appeals, Fifth Circuit

August 11, 1980

Rehearing and Rehearing En Banc Denied Oct. 1, 1980.

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[Copyrighted Material Omitted]

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Wilmer, Cutler & Pickering, Michael Burack, Washington, D. C., John L. Carroll, Dennis N. Balske, Montgomery, Ala., for petitioner-appellant.

Jean W. Brown, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before JONES, GEE and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

Michael Anthony Mayola was convicted and sentenced to life imprisonment on November 15, 1962 for the first degree murder of an 11 year old Alabama boy. Though he took no direct appeal from that conviction, Mayola has subsequently attempted several collateral attacks in both state and federal courts. This appeal arises from the district court's denial of his petition for habeas corpus, 28 U.S.C. § 2254, filed May 3, 1978, which followed an unsuccessful bid for writ of error coram nobis in the Alabama state courts based on essentially the same grounds, Mayola v. State, 344 So.2d 818 (Ala.Cr.App.), cert. denied, 344 So.2d 822 (Ala.1977). Though he presented several purported constitutional errors to the district court, Mayola has chosen on this appeal to press only his claim that, due to the intensive pretrial publicity and resultant community prejudice that pervaded Oneonta, Alabama and surrounding Blount County the site of the murder and the trial, and the area from which the jury venire was drawn he was denied his right, guaranteed by the Sixth and Fourteenth Amendments, to trial by a fair and impartial jury. Mayola also contests the district court's holding, an alternative to its rejection of the substance of his claims, that, insofar as his petition is grounded upon a claim of pretrial publicity and jury prejudice known to Mayola and his attorneys since the trial in 1962, it is barred under the doctrine of laches as embodied in rule 9(a) of the Rules Governing § 2254 Cases, 28 U.S.C. We affirm the district court's denial of the writ.

I. Background

On August 2, 1962, Larry Thomas was kidnapped after watching a little league baseball practice in Midfield, Alabama, near Oneonta. Soon thereafter, on August 7, 1962 shortly after the boy's body had been discovered in a shallow grave behind Mayola's cabin outside Oneonta Mayola, who had been operating a barbershop in the small Alabama town, reported to the F.B.I. office in Baltimore, Maryland and apparently told officers there that he had killed a boy in Alabama. He was then arrested and, after waiving extradition proceedings, was returned to Oneonta to stand trial.

As might be expected of a crime of this nature, Larry Thomas' kidnap-murder spawned a great deal of press attention. The particular publicity of which Mayola complains is largely that attributable to the coverage given the case, and Mayola's role in it, by two Birmingham newspapers, the Birmingham News and the Birmingham Post-Herald both alleged to have been circulated in adjacent Blount County; 1 no evidence of the content or scope of radio or television coverage was ever adduced. From the outset these two papers gave prominent and extensive written and photographic coverage to the crime and its subsequent litany of investigation and prosecution. The News somehow secured the deputization of one of its reporters by the Blount County Sheriff's Department, apparently in exchange for the use of the

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reporter's air-conditioned automobile, to enable him to accompany officers as they escorted Mayola back to Oneonta from Baltimore. On this junket, the reporter frequently questioned Mayola about the crime, and telephoned stories detailing the highly inculpatory fruits of these sessions, including quotations from the accused, back to the News as the trip progressed. In addition both newspapers published graphic accounts of Mayola's confessions given in Baltimore and upon his return to Alabama while being held overnight in a jail near Blount County where he apparently had been taken to avoid a crowd gathered for his arrival in Oneonta. The News' front-page report of the latter confession included photographs depicting Mayola smiling blithely while purportedly in the act of confessing. Similar coverage attended police disclosures of each discovery of additional evidence against Mayola, whether admissible at trial or not.

The attention generated by this tragic crime was undoubtedly heightened by the theme of sexual deviance associated with it which pervaded the newspaper coverage. The publicity assault commenced immediately after the kidnapping with somewhat sensationalistic front-page speculation by both papers that the boy had fallen prey to a "lunatic" or "sex pervert." Both papers subsequently published several editorials, and reported the views of prominent politicians, calling for stricter laws and more severe penalties for child molesters and other "sex perverts." Fuel was added to this inflammatory theme by the disclosure, reportedly by the F.B.I., of Mayola's previous conviction in 1955 for sodomy and his apparent involvement in another minor adventure with a child in California, and by the disclosure that Mayola had confessed to sodomy in the instant case. Following these disclosures and the release of his confessions, Mayola was commonly referred to in news articles as a "convicted sex pervert," "confessed boy-slayer," and by other similar epithets.

News reports of developments in the police investigation and pending judicial proceedings, as well as "feature" articles obviously aimed at exploiting community sentiment, appeared almost daily from the time of the kidnapping through Mayola's return to Oneonta in the middle of August and continued to appear regularly, though less frequently, until the end of the month. Thereafter, until the eve of trial two months later, the case was given only light and sporadic attention, generally in stories dispassionately chronicling the progress in pretrial proceedings.

On Sunday, November 11, 1962, however, the morning before the jury was to be empanelled, the News published as its lead, front-page article an interview conducted only the day before with Mayola in his jail cell by the same News reporter who had tagged along on Mayola's extradition. The article reported that Mayola intended to repudiate the pleas of not guilty and not guilty by reason of insanity entered by his attorneys, and included Mayola's personal view that he was "not crazy" and would "deserve anything (he got)" for his crime. The Post-Herald also carried a version of the interview the following morning.

The precise response of the trial court and of Mayola's four court-appointed attorneys to this barrage of publicity, and in particular to the eve-of-trial salvo, cannot now be determined with any certainty, 2

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since no transcript of the trial was produced because Mayola took no direct appeal and because the court reporter's notes were lost or destroyed sometime in the many years since the trial. It is undisputed, however, that the issue of pretrial publicity was raised to the court in the form of a motion for continuance, which was denied. Further, members of the venire were individually interrogated on voir dire by the court and by Mayola's attorneys, and each juror empanelled was qualified by the court on the matter of publicity and prejudice. In the ensuing trial, this jury found Mayola guilty of first degree murder and rejected his insanity plea, but resisted the expectations of the public and the exhortations of the State to prescribe the death penalty, instead meting out a sentence of life imprisonment from which Mayola declined to appeal.

Mayola did not again raise the question of jury prejudice until his fleeting reference to it 11 years later in his first unsuccessful state coram nobis petition, filed April 3, 1973. See Mayola v. State, 57 Ala.Cr.App. 137, 326 So.2d 665 (1976) (indicating that this and other claims had not been developed through hearing testimony). He did not seek federal habeas corpus relief on this ground until 1976 in a petition dismissed for failure to exhaust state remedies, Mayola v. Alabama, CA-75-A-2263-S (N.D.Ala. Apr. 2, 1976). He did not file the petition under review here for the first time squarely presenting the jury prejudice issue for federal review until 1978, 16 years after his conviction. Consequently, in addition to rejecting the substance of Mayola's arguments regarding pervasive pretrial publicity and jury prejudice, the district court further ruled that Mayola's petition was subject to dismissal under rule 9(a) of the Rules Governing § 2254 Cases 3 due to his unreasonable and prejudicial delay in filing that petition.

II. Prejudicial Pretrial Publicity

One seeking to have his conviction nullified on the ground that he was denied a fair trial to an impartial jury due to adverse pretrial publicity ordinarily must demonstrate an actual, identifiable prejudice attributable to that publicity on the part of members of his jury. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed. 751 (1961); United States v. Capo, 595 F.2d 1086, 1090 (5th Cir. 1979) cert. denied, 444 U.S. 1012, 100 S.Ct. 660, 62 L.Ed. 641 (1980); Hale v. United States, 435 F.2d 737, 746-47 (5th Cir. 1970) cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). Barring the introduction of affidavits or testimony of jurors admitting bias, proof of such prejudice without recourse to a transcript or other detailed account of the voir dire of the jury venire would be virtually impossible. United States v. Haldeman, 559 F.2d 31, 60 (D.C.Cir. 1976) cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). Consequently,...

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